Family and Divorce Law in New York: Family Court Not Just For Families Anymore

The Appeals Court in Albany, New York decided a Madison County Family Court Judge erred when he denied Jessica D.’s request for an order of protection for “reasons of public policy”. Even though the nature of the relationship met the standard of intimacy required by Family Court Act, section 812, as established by the legislature, Judge Dennis K. McDermott denied the request because Jessica D. was married and Petitioned for the order of protection against an on-again, off-again, boyfriend. In fact, Jessica D. was still living with her husband and daughter when she went on a ten-day liaison with her boyfriend, and thereafter filed a petition in Family Court for an order of protection alleging that he hit her in the leg and threatened to shoot both her and her husband.

The third department decided the main purpose of Family Court Act Article 8, section 812, is “providing reasonable means and methods of protection and enforcement for victims of domestic violence…” Walker v. Walker, 86 NY2d 624 (1995). In essence, the Court decided it was legislative intent to extend Family Court jurisdiction to cover relationships such as the one had between the parties herein. While those in "intimate" relationships were intended mainly to be non-married boyfriends and girlfriends, the statute explicitly says that no sexual relationship need exist for an alleged abuse victim to seek an order of protection against his or her abuser.

The Judge who made the underlying Family Court decision questioned Jessica D.’s commitment to her marriage. However, that is not the point of the Family Court Act, especially not of Article 8, section 812. Regardless of Jessica D.’s commitment to her family and marriage, she required protection against someone she was in an “intimate” relationship with, as established by the Family Court Act and interpreted by case law. Justice Mercure wrote, "Courts have no right to add to or take away from [the statute's plain] meaning. He went on to explain that the Court’s sole objective "is to discern and apply the will of the Legislature, not the court's own perception of what might be equitable."

In my personal opinion there is a shift in the Court away from traditionalism and judgment to modernity and understanding. What I mean is that, in the past adultery was a shameful and punishable act in Family and Matrimonial Courts. In New York, it is a ground for divorce that used to hold major weight in decision of equitable distribution, custody and other Family Court and Matrimonial Decisions. Lately, though, I observe a shift away from the ideal of preserving the sanctity of marriage, to a larger understanding and acceptance of the changing nature of relationships. One major indicator of such a shift, is the Senate passing No Fault Divorce in New York. Is this a positive or negative change, I’m not sure yet, but I believe the next few years will prove very interesting in the field of Family and Matrimonial Law, not just in New York, but all over the country.

If you have an opinion or any comments to add they are always appreciated and welcome.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com

New York Divorce and Family Law: Violance Against Women Act

The Justice Department has decided that the criminal provisions in the Violence Against Women act should be enforced in cases involving gay and lesbian relationships.

The Violence Against Women Act was first passed by Congress in 1994. Its provisions made it a federal crime to cross state lines with the intent of committing domestic violence, stalking, or violating a protection order. The government’s application of laws to gay and lesbian relationships has been a matter of great contention. The Defense of Marriage Act, a 1996 law, required the federal government to define terms like “marriage” and “spouse” as legal categories that can only be understood as a union between one man and one woman.

Since the Violence Against Women Act includes terms not covered by the Defense of Marriage Act, like “dating partner” and “intimate partner”, and since the provisions of the Act make clear it applies to conduct against male, as well as female, victims, it has been determined that the text of the Act is gender-neutral.

The expansion of the Violence Against Women Act, like the amendment to Article 8 of the Family Court Act in New York which extended the ability of an individual to obtain an Order of Protection against any individual they have been in an intimate relationship with regardless of whether such persons have lived together at any time, is a step towards equality and recognizing that same-sex couples are subject to the same issues facing other committed couples, such as domestic violence.

If you are seeking more information about Family Offense Proceedings or any other Family Court preceding in New York you may go to:
http://www.nycbar.org/pdf/famguide_ms.pdf

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com